Opinion
D.D. No. 75-6
Decided January 21, 1976.
Attorneys at law — Misconduct — Acts constituting — Neglect of legal matters and maintenance of incomplete records.
ON CERTIFIED REPORT by the Board of Commissioners on Grievances and Discipline.
In February 1959, respondent, James J. Stanard, a member of the Ohio Bar since 1949, drafted a will for Stanley J. Basta, the owner of the Basta Music Store in Cleveland, Ohio. On September 14, 1972, subsequent to the death of Basta, respondent was appointed administrator with the will annexed of the Basta estate.
Following his appointment, respondent attempted to liquidate the store's assets and converted decedent's commercial checking account into an account styled "Basta Music Store," for the purpose of depositing the receipts from sales at the store. During this time, respondent maintained a trust checking account, the "James J. Stanard, Special Account," which he often used to deposit client's money, and approximately $20,000 of the Basta estate assets were placed therein. At no time did respondent deposit the assets of the estate into an interest bearing account.
During the period from February 16, 1973, to December 31, 1973, respondent wrote a series of checks on the "Basta Music Store" account in the amount of $23,000, to compensate himself for his services as the administrator and attorney for the estate. Although this total far exceeded the rates fixed by R.C. 2113.35 and the rules of the Probate Court of Cuyahoga County, respondent believed that the difference represented a payment for the "extraordinary services" he rendered in the operation of the music store. In this respect, however, respondent failed to keep any records indicating how much he had previously drawn or, consequently, what amount he felt he was subsequently entitled to receive. No application was filed with the Probate Court for the allowance of compensation for extraordinary services, as required by that court. Additionally, some of the fee payments were made when respondent was delinquent in the accounting of the estate under R.C. 2109.30.
In June 1973, respondent became delinquent in filing an inventory and, after several notices of that fact were sent to him, the Probate Court issued a citation ordering him to file an inventory. Respondent failed to comply with the citation and, on November 23, 1973, an attachment for contempt of court was ordered.
Thereafter, the heirs to the Basta estate became disenchanted with respondent's services and asked for his removal as administrator. In March 1974, the Probate Court ordered respondent's removal and required him to file a final accounting.
On June 24, 1974, the court found that respondent had filed his final accounting but was unable to turn over the $52,577.40 balance in the estate. The interested parties agreed to a $47,880 surcharge against respondent, of which $5,280 represented the lost interest resulting from his failure to place estate funds in an interest bearing account. The surcharge and interest were paid by a surety company which had issued a bond to respondent.
Subsequently, relator, the Bar Association of Greater Cleveland, instituted this proceeding before the Board of Commissioners on Grievances and Discipline. Before the hearing panel of the board, respondent testified that the checks he issued to himself for compensation as administrator and attorney comprised part of the $42,600 shortage in estate funds, but that he could not account for the difference. His testimony indicated further that he did not maintain accurate records of these payments, or of other matters pertaining to the estate, and that he failed to meet filing schedules pertaining to the administration of the estate.
Respondent primarily attributed his actions to the excessive amount of time spent in operating the music store and to the severe emotional strain he suffered during this period resulting from personal problems within his family.
The board found, inter alia, that respondent had violated Canon 6, DR 6-101(A)(3) and Canon 9, DR 9-102(B)(3), that he engaged in misconduct as defined in Gov. R. V(5)(a), and recommended that he be indefinitely suspended from the practice of law.
The matter is now before this court for consideration of the report of the board and the objections of respondent.
Mr. F. Wilson Chockley, Jr., and Mr. Don P. Brown, for relator.
Mr. James J. Carroll, for respondent.
Upon examination of the record, this court agrees that the evidence amply supports the findings of the board that respondent has violated Canon 6, DR 6-101(A)(3), in that he clearly neglected legal matters entrusted to him, and Canon 9, DR 9-102(B)(3), in that he did not maintain complete records of all funds coming into his possession, thereby failing to preserve the separate identity of such funds. The foregoing violations constitute misconduct as defined in Gov. R. V(5)(a). Furthermore, those factors offered by respondent in mitigation of his actions are insufficient to justify his failure to abide by the rules which govern the members of the bar. If the operation of decedent's music store and an alleged concurrent emotional strain prevented respondent from adequately administering the estate, it was respondent's professional responsibility to ask to be relieved of such duty.
We concur with the recommendation of the Board of Commissioners on Grievances and Discipline, and respondent is indefinitely suspended from the practice of law.
Judgment accordingly.
O'NEILL, C.J., HERBERT, COLE, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
COLE, J., of the Third Appellate District, sitting for CORRIGAN, J.